Federal Court of Australia

BCI Media Group Pty Ltd v CoreLogic Australia Pty Ltd (No 2) [2023] FCA 664

ORDERS

THE COURT ORDERS THAT:

1.    The leave sought in the amended interlocutory application dated 9 March 2023 be refused.

2.    The applicant provide any further draft statement of claim to the respondents by 31 July 2023.

3.    In the event that a further draft statement of claim is provided in accordance with Order 2, the respondent inform the applicant and the Court (through the Associate to Yates J) by 21 August 2023 whether there is any objection to the draft statement of claim being filed.

4.    The applicant pay the respondents’ costs of and incidental to the interlocutory application dated 1 December 2022 and the amended interlocutory application dated 9 March 2023.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The applicant, BCI Media Group Pty Ltd, seeks to file an amended originating application and a statement of claim in the following circumstances.

2    On 23 September 2022, the Court made an order that BCI’s statement of claim filed on 1 April 2021 be struck out. At that time, the Court also refused leave to BCI to file an amended statement of claim in the form appearing in Schedule B to its amended interlocutory application filed on 1 February 2022. Other procedural orders were made: BCI Media Pty Ltd v CoreLogic Australia Pty Ltd [2022] FCA 1128 (BCI v CoreLogic).

3    On 17 November 2022, orders were made by consent between BCI and the fifth respondent, Mr Colangelo, that leave be granted to BCI to discontinue the proceeding against Mr Colangelo, with no order as to costs.

4    On 1 December 2022, BCI filed an interlocutory application seeking leave to file an amended originating application and a statement of claim substantially in the form of the drafts exhibited to an affidavit made on 1 December 2022 by its solicitor, Mr Williams.

5    On 2 December 2022, the hearing of the interlocutory application was listed for 27 February 2023. Other procedural orders were made, including orders providing for the filing of written outlines of submissions.

6    The remaining respondents in the proceeding—CoreLogic Australia Pty Ltd (the first respondent), RP Data Pty Ltd (the second respondent), Cordell Information Pty Ltd (the third respondent) and CoreLogic, Inc (the fourth respondent) (together, the CoreLogic parties)—opposed BCI’s interlocutory application. They filed their written outline of submissions on 13 February 2023.

7    BCI filed its written outline of submissions in response on 23 February 2023. The outline annexed a further version of the draft statement of claim.

8    The hearing of the interlocutory application proceeded on 27 February 2023 on the basis that the further version of the draft statement of claim annexed to BCI’s written outline of submissions was the statement of claim it wished to file. This draft statement of claim was a substantial document comprising 136 paragraphs (70 pages). However, in the course of oral submissions, BCI proposed (at least provisionally) some limited further amendments to the document. At the conclusion of the hearing, I left it to BCI to inform the Court whether, on reflection, it wished to persevere with those amendments.

9    On 9 March 2023, BCI’s solicitors informed the Court that BCI did not wish to persevere with those amendments. However, they also informed the Court that BCI wished to make yet further amendments to the version of the draft statement of claim annexed to BCI’s written outline of submissions. Specifically, BCI sought to plead new allegations in the form of new paragraphs 42A, 42B, 73A, 73B, 74A, 74B, 75A, 75B and 77A, and make consequential amendments to paragraphs 43, 75, 77B, 78, 80 and 81. These allegations concern, principally, the pleading of the claims of copyright infringement.

10    Following correspondence between the parties, orders were made by consent on 10 March 2023 granting leave to BCI to file an amended interlocutory application dated 9 March 2023, and putting in place a timetable for the filing of further submissions by the CoreLogic parties (by 17 March 2023) and by BCI (by 24 March 2023).

11    The amended interlocutory application included, as an annexure, a further version of the draft statement of claim, which included the additional paragraphs and other amendments to the version of the statement of claim that was before the Court at the hearing on 27 February 2023.

12    The general nature of BCI’s allegations are summarised in BCI v CoreLogic at [9] – [11].

The CoreLogic parties’ opposition

13    The opposition by the CoreLogic parties to BCI filing an amended originating application and statement of claim remains.

14    The draft statement of claim presently before the Court for consideration (see [11] above) is not merely a revision of the previously filed (and subsequently proposed) pleadings analysed in BCI v CoreLogic. It is a new and fundamentally different pleading of BCI’s claims. Nevertheless, the CoreLogic parties contend that the present draft statement of claim is defective because it:

(a)    contains imprecise and rolled-up allegations including, in some cases, “infinite rolled up alternatives”;

(b)    pleads material facts and particulars (or fails to plead them at all) which cause the pleading to be incoherent; and

(c)    fails to properly plead loss.

15    The CoreLogic parties contend that this manner of pleading makes it difficult, and in some cases impossible, for them to know with any degree of precision:

(a)    how it is contended that the allegations relate to individual respondents;

(b)    how it is that each duty or obligation is alleged to have been breached by particular respondents;

(c)    the material facts relied upon in respect of each breach alleged against particular respondents;

(d)    the causal analysis said to flow from each breach by each respondent; and

(e)    the loss alleged to flow from those breaches.

16    These are, in substance, the same complaints made of previous versions of the statement of claim. In effect, the CoreLogic parties contend that, despite the fundamentally different nature of the draft statement of claim, the pleading of BCI’s claims continues to have the same fundamental problems identified by the Court in BCI v CoreLogic. They contend that no leave should be granted to BCI to file a statement of claim until BCI can articulate its case in a way that can be understood, defended, and ultimately advanced to a trial.

Analysis

17    I will not repeat the comments I made in BCI v CoreLogic. I will proceed to deal directly with the nub of the CoreLogic parties’ complaints with respect to the present version of the draft statement of claim. These complaints are to be found, substantially, in the CoreLogic parties’ written submissions dated 13 February 2023 and 16 March 2023. The appellant’s written submissions dated 13 February 2023 were supplemented by oral submissions.

18    The CoreLogic parties’ written submissions dated 13 February 2023 were directed to an earlier version of the draft statement of claim, which was not the form of the statement of claim considered at the hearing on 27 February 2023 or, for that matter, the form of the statement of claim that BCI now propounds. A number of the submissions advanced through that document are no longer apposite in light of further amendments that BCI has made to its draft pleading.

19    For example, a significant complaint raised in those submissions (as an example of a rolled-up allegation) is that BCI had treated the CoreLogic Australia, RP Data and Cordell as a single entity for the purpose of the allegations made against them. The CoreLogic parties submitted that the pleading was deficient in that, even if, ultimately, the Court were to find a common enterprise between those particular parties, BCI had not pleaded the material allegations of fact which, if proved, would establish that each was liable for the acts of the others. Whatever the merits of that complaint, it has now been removed by the focus of the current draft on RP Data as a principal contravener and CoreLogic Australia and Cordell as secondary contraveners in respect of RP Data’s conduct.

20    I will, therefore, only deal with the written submissions dated 13 February 2023 to the extent that they remain relevant to the present draft pleading.

The pleading of imputed knowledge

21    In paragraph 6(a) of the draft statement of claim, BCI pleads that, at all material times, CoreLogic Australia, RP Data, and Cordell had common directors and officers “such that their knowledge is imputed to each of CoreLogic Australia, RP Data, and Cordell”. The CoreLogic parties contend that this pleading is “hopelessly wide”. They contend that corporate knowledge cannot be imputed simply on the basis of common directorship. They also contend that imputed knowledge is not sufficient to make out the knowledge requirement in relation to later allegations in the pleading concerning accessorial liability under the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)).

22    It seems to me that the allegation in paragraph 6(a) is sufficiently clear as a matter of pleading: (a) CoreLogic Australia, RP Data, and Cordell had common directors; and (b) the knowledge of those directors is to be imputed to each of CoreLogic Australia, RP Data, and Cordell. By “imputed” I understand BCI to be alleging no more than that the knowledge of a particular director was, by reason of that person’s office, also the knowledge of CoreLogic Australia, RP Data, and Cordell. Whether that proposition is correct is a question that can be debated and determined at trial.

23    I accept that BCI’s pleading of the involvement of CoreLogic Australia, Cordell, and CoreLogic in the alleged contraventions of the Australian Consumer Law is generally deficient. I have dealt with this in later paragraphs of these reasons: see [61] – [79] below.

The relationship between CoreLogic Australia, RP Data, and Cordell

24    The CoreLogic parties complain that, generally, the allegations pleaded in paragraph 6 of the draft statement of claim concerning the relationship between CoreLogic Australia, RP Data, and Cordell are “nebulous” and lacking in precision. I accept that paragraph 6 is pleaded at a relatively high level of generality. I note, however, that these allegations are directed to the general allegation pleaded in paragraph 7 that these parties operated their business jointly and deployed their resources for their own and each other’s benefit. In context, I do not accept that the pleading of paragraph 6 is deficient for want of sufficient precision.

25    The CoreLogic parties contend that paragraph 6(g) is “particularly problematic”. This is (now) an allegation that RP Data licensed particular software (later defined as “Robotics Programs”) to copy BCI Works and BCI Confidential Information. The CoreLogic parties complain that particulars of the licence(s) are not given. They also point to the use of infelicitous language. For example, the confinement of paragraph 6(g) to RP Data sits oddly with the chapeau to paragraph 6 (“At all material times, CoreLogic Australia, RP Data and Cordell …”) and later wording in paragraph 6(g) (“… which they used for the purpose of accessing and copying BCI Works and BCI Confidential Information from LeadManager …”). I agree with the criticism concerning the use of infelicitous language. It is, however, a relatively minor complaint that can be addressed readily. I am not persuaded that further particulars of the licences are required, particularly as to whether the licences were oral or in writing. The licences have been identified by date and by parties. As RP Data is the alleged licensee, the CoreLogic parties have sufficient information as to the identity of the licences alleged to plead to that particular allegation.

26    Perhaps the more important complaint is that paragraph 6(g) is rolled-up. The CoreLogic parties contend that, in this form, “it is not clear, at all, what is sought to be pleaded by that paragraph” and that it “just does not make sense”. I do not accept that submission. The allegation is sufficiently clear.

27    The CoreLogic parties also call into question the materiality of the allegations made in paragraphs 6(h), (i), and (j). The allegations are clear as a matter of pleading. The question of their materiality (particularly in relation to the allegation made in paragraph 7) can be debated and determined at trial.

28    The CoreLogic parties complain that paragraph 7 of the draft statement of claim is, itself, “hopelessly wide”. I do not accept that submission.

The several conduct of RP Data, Telus International, and Artis Group

29    Paragraphs 42, 42A, and 42B of the draft statement of claim contain allegations relating to the conduct of, respectively, RP Data, Telus International (US) Corp, and Artis Group Pty Ltd accessing LeadManager and carrying out certain activities. The CoreLogic parties contend that these are rolled-up allegations which make it impossible to know what actions have been undertaken by each actor. The CoreLogic parties make the same complaint with respect to paragraphs 73A, 73B, 74A, 74B, 75A, and 75B.

30    I do not accept those submissions. Although there is some rolling-up, I read each paragraph as identifying a course of conduct alleged to be engaged in by each of RP Data, Telus International, and Artis Group which involves a set of related steps. In my view, the allegations are sufficiently clear.

31    The CoreLogic parties contend that paragraph (i) of the particulars to paragraph 42 is deficient because it does not identify the contracts there referred to. I note, however, that the contract between RP Data, CoreLogic Solutions LLC, and Telus International is identified in the particulars to paragraph 42A and the contract between RP Data and Artis Group is identified in the particulars to paragraph 42B. If BCI relies on other contracts for the purposes of paragraph 42, it must identify them in its pleading.

32    The CoreLogic parties contend that paragraphs 42A(c) and 42B(c) are unintelligible because a verb is missing, resulting in the allegations being a nonsense.

33    I accept that, in each paragraph, a verb (such as “copied”) is missing. Each paragraph comprises the expression “Copied Information”, which is defined (in paragraph 42(c)) to mean “copied information from LeadManager”. By reference to this definition, it is possible to read paragraphs 42A(c) and 42B(c) intelligibly. However, other paragraphs (e.g., 42A(e) and 42B(e)) use “Copied Information” as a collective noun. The criticism of paragraphs 42A(c) and 42B(c) is easily rectified.

RP Data’s conduct pleaded in paragraph 43

34    The CoreLogic parties contend that paragraph 43 is a rolled-up allegation involving different activities undertaken by RP Data which are not supported by material allegations of fact. In this regard, they contend that the particulars to this paragraph do not afford sufficient precision to the rolled-up allegation that is made.

35    I accept that criticism of paragraph 43. The conduct in subparagraphs (a), (b), and (c) are separate events which need to be disaggregated. BCI then needs to plead how the information it accessed, observed, and analysed on LeadManager; how the Copied Information; how the Comparative Documents; how the Copied Information provided by Telus International; how the Comparative Documents provided by Telus International; how the Copied Information provided by Artis Group; and how the Comparative Documents provided by Artis Group, was used by RP Data in respect of each event (if applicable) identified in subparagraphs (a), (b), and (c).

The knowledge and involvement of CoreLogic Australia and Cordell

36    The CoreLogic parties contend that paragraph 43A is a rolled-up pleading that is “problematic”. This paragraph alleges that CoreLogic Australia and Cordell had knowledge of, approved, and assisted RP Data in the activities pleaded in paragraphs 24 to 43.

37    I accept that paragraph 43A is deficient as a matter of pleading. As I understand it, paragraph 43A alleges that CoreLogic Australia and Cordell each (in equal measure) had knowledge of, approved, and assisted in the identified activities. This allegation is based on the pleaded knowledge and activities of identified individuals or groups of individuals, and the storage of groups of documents on a shared information management system, in subparagraphs (a), (b), (c), and (d).

38    There are, however, a number of matters to note about the pleading of paragraph 43A. The first is the use of “involved” in subparagraphs (a)(i)(A), (a)(ii)(A) and (a)(ii)(B). These uses of “involved” lack precision. The nature of the involvement should be pleaded. Secondly, it is not clear how subparagraph (b) relates to subparagraph (a) in relation to persons who were directors of RP Data and also directors of CoreLogic Australia and Cordell. Subparagraph (b) appears to be an allegation that is in addition to the allegation made in subparagraph (a). If so, the directors intended to be covered by subparagraph (b), and their particular knowledge, should be pleaded along the lines of subparagraph (a). The same applies to subparagraph (c): the known employees should be identified and their particular knowledge and particular activities should be pleaded.

The copyright claims

39    The CoreLogic parties note that BCI alleges that its copyright works (the BCI Works) comprise “Project Reports”, “Project Information”, and “Project Spreadsheets”. The CoreLogic parties contend that these works are described in “an extremely general way” and “plainly contain information in the public domain”. The CoreLogic parties submit that the draft pleading does not sufficiently explain the basis for copyright subsisting in the works. I do not accept those submissions.

40    BCI’s case is that, between 21 July 2016 and 27 March 2020, thousands of Project Reports were created and published on LeadManager. In the version of the draft statement of claim before the Court at the hearing, and at the present time, BCI has described the nature of these works, and the nature of the Project Information (which is compiled and arranged in the form of Project Reports) and the Project Spreadsheets, as literary works. In a separate document titled “Applicant’s Confidential Particulars to Statement of Claim”, BCI has provided particulars which give representative examples of each work.

41    I am satisfied that the present draft statement of claim sufficiently pleads BCI’s case on the subsistence of copyright with respect to each of the BCI Works. I observe in passing that the fact that information in the BCI Works might be “in the public domain” is neither here nor there and is not a legitimate complaint of the pleading itself.

42    The CoreLogic parties submit that BCI’s allegations of copyright infringement continue to be rolled-up. In this regard, the CoreLogic parties refer to BCI v CoreLogic at [59], where I said with respect to the pleading then under consideration:

The pleading of the copyright claim is also deficient on the infringement side of the ledger. … It also pleads a series of infringing acts (reproducing, making an adaptation, and making available online or electronically transmitting) cumulatively and individually … without identifying, with respect to each instance of alleged infringement, the particular act(s) relied on to make good the alleged infringement. BCI must specify the manner in which each copyright work (on which it relies) is alleged to be infringed and must give at least one instance of each type of infringement alleged: r 34.35.

43    Generally speaking, I accept that a degree of rolling-up is involved in the present draft. However, taken as a whole, BCI’s pleading of infringement in the present draft statement of claim is considerably more explicit and, correspondingly, clearer. I do not think that the degree of rolling-up in the draft statement of claim with respect to copyright infringement is, of itself, a significant problem. Further, the alleged acts of infringement are also now supported by particulars in accordance with r 34.35 of the Federal Court Rules 2011 (Cth). If in the preparation of this matter for hearing it appears that further elaboration of the case on infringement is required, then appropriate case management steps can be taken at that time.

44    The CoreLogic parties identified a deficiency in paragraph 78 of the draft statement of claim which is (now) an allegation that RP Data authorised acts of infringement by Telus International and Artis Group. The deficiency was that there was no antecedent pleading of infringement by Telus International and Artis Group. This has been remedied by the inclusion of paragraphs 73A, 73B, 74A, 74B, 75A, 75B and 77A in the present draft, and by a consequential amendment to paragraph 76.

45    Paragraph 79 of the draft statement of claim now alleges that CoreLogic Australia and CoreLogic authorised RP Data’s infringements. The CoreLogic parties submit that paragraph 79 is pleaded in “a conclusory way”, with no material allegations of fact pleaded to support the conclusions. I do not accept that submission.

46    The CoreLogic parties also contend that there is an inconsistency between paragraph 79 and paragraph 49 of the draft statement of claim. I do not perceive any inconsistency.

47    I accept, however, that the pleading of paragraph 80 of the draft statement of claim is deficient. This paragraph now alleges (in subparagraphs (a) to (c)) that CoreLogic Australia, Cordell, and CoreLogic “induced or procured; entered into a common design with; or were joint tortfeasors with” RP Data in respect of its alleged infringements. The CoreLogic parties contend that subparagraphs (a) to (c) are rolled-up allegations that present alternatives, and that BCI has not pleaded facts to support these alternatives.

48    As I read this part of paragraph 80, BCI is doing no more than pleading alternative legal characterisations of the same course of conduct pleaded in subparagraphs (d) to (f). To that extent, there is no difficulty. “Rolling-up”, to the extent it exists, is not a problem.

49    However, subparagraphs (d) to (f) are prefaced by an allegation that, from at least May 2016, CoreLogic Australia, Cordell, and CoreLogic were “agreeing to and performing” the acts referred to in those subparagraphs. The words “agreeing to and performing” are a compound expression. None of the acts pleaded in subparagraphs (d) to (f) appear to be “acts” that were allegedly performed by those parties. As pleaded, all the acts appear to be attributable to RP Data. Therefore, to this extent, the acts pleaded in subparagraphs (a) to (c), which are referable to CoreLogic Australia, Cordell, and CoreLogic, are not supported by material allegations of fact. Alternatively, paragraph 80 is not clear. The same problem exists with paragraphs 54A and 77B, which are in substantially the same form as paragraph 80.

50    The CoreLogic parties also point to an arguable lack of clarity in paragraph 80(d) by BCI’s use of the words “such as”. That point is well made. The problem can, however, be readily addressed by substituting “namely” for “such as” to confine the allegation to the activities of the Forum Group, SkillTech and Gingold, which the draft statement of claim otherwise addresses. I will return to consider the CoreLogic parties’ objection to the use of similar inclusive language in the present draft statement of claim.

51    Further, the CoreLogic parties point to an arguable lack of clarity in paragraph 80(e)(i) by BCI’s reference to employees of “other subsidiaries of CoreLogic, Inc”, without identifying those subsidiaries. I read this allegation as meaning employees who are employed by a company within the corporate group of which CoreLogic is the ultimate holding company. So understood, there is no lack of clarity; nor can I see how this aspect of the draft pleading is embarrassing.

52    Finally in respect of paragraph 80, there is, perhaps, an inapt use of the word “alternatively” in the phrase “Further or alternatively”, as the CoreLogic parties suggest. But, if so, this is of no consequence.

53    The CoreLogic parties advance similar contentions with respect to the pleading of paragraph 81 of the present draft statement of claim. This is an allegation that CoreLogic Australia, RP Data, Cordell, and CoreLogic “induced or procured; entered into a common design with; or were joint tortfeasors with” Telus International and Artis Group in respect of their alleged infringements.

54    Paragraph 81 exhibits a similar problem to the one noted with respect to paragraphs 54A, 77B, and 80. All the acts that are pleaded in subparagraphs (d) to (f) to support the allegations in subparagraphs (a) to (c) (made with respect to CoreLogic Australia, RP Data, Cordell, and CoreLogic) are acts performed only (it seems) by RP Data. Therefore, the allegations made against CoreLogic Australia, Cordell, and CoreLogic are not supported by material allegations of fact, or are not clear.

55    I do not accept the criticism of BCI’s reference to employees of “other subsidiaries of CoreLogic, Inc” in paragraph 81(d)(ii)(A), for the same reasons given with respect to paragraph 80(e)(i): see[39] above.

56    However, I do accept the criticism of paragraph 81(d)(i), which is the same criticism levelled at paragraph 80(d): see [38] above.

57    Paragraph 134, which is directed to a claim for additional damages under s 115(4) of the Copyright Act 1968 (Cth), alleges that the CoreLogic parties did the acts alleged against them flagrantly and with certain knowledge and intent. The CoreLogic parties submit that this is a rolled-up allegation and that the particular state of mind alleged against each party is not pleaded. I do not accept that submission.

58    While paragraph 134 is rolled-up to some extent, its meaning is clear—namely that each of the CoreLogic parties is alleged to have acted, as relevantly pleaded in paragraphs 73 to 81, flagrantly, and with the knowledge and intention that is specified in paragraph 134(a) to (f).

59    I accept, however, that the particulars to paragraph 134 do not pay sufficient attention to the earlier pleaded allegations and apply indiscriminately to each of the CoreLogic parties. I refer particularly, but not necessarily exclusively, to particulars (v) and (vi). This should be rectified.

The breach of confidence claims

60    These claims are based on the allegation that Forum Group, SkillTech, and Gingold breached duties of confidence they owed to BCI. In paragraph 98, BCI pleads that CoreLogic Australia, RP Data, and Cordell were knowingly involved in, or provided knowing assistance in relation to, these breaches of confidence. Central to this allegation is the allegation made in paragraph 98(b) of the draft statement of claim that each of them “agreed to and performed” certain identified acts. As used in paragraph 98, “agreed to and performed” is a compound expression. However, what then follows is a series of acts by RP Data. This a similar problem to the one I have identified with paragraphs 54A, 77B, 80, and 81 of the draft statement of claim. The allegations referable to CoreLogic Australia and Cordell are not supported by material allegations of fact. Alternatively, paragraph 98 is not clear.

Misleading or deceptive conduct

61    Paragraphs 100 to 125 of the draft statement of claim plead allegations of misleading or deceptive conduct with reference to three groups of alleged representations.

62    The first group comprises representations concerning Forum Group, SkillTech, and Gingold individually wanting to access and use LeadManager (respectively called the “Forum Group Subscription Representations”, the “SkillTech Subscription Representations” and the “Gingold Subscription Representations”). The representations and the nature of the alleged misleading or deceptive conduct are pleaded in paragraphs 100 to 120. Paragraphs 105, 112, and 119 allege that RP Data engaged in this conduct or was involved in it within the meaning of s 2 of the Australian Consumer Law.

63    The second group comprises representations allegedly made by RP Data, called the “Legitimate Subscriber Representations”. These are representations arising from conduct allegedly engaged in by RP Data in relation to accessing LeadManager using the User Details provided by Forum Group, SkillTech, and Gingold respectively, and copying information from LeadManager.

64    The third group comprises representations also allegedly made by RP Data, called the “Third Party Representations”.

65    Paragraph 126 pleads that CoreLogic Australia, Cordell, and CoreLogic were involved in the misleading or deceptive conduct pleaded in paragraphs 100 to 125. In the case of CoreLogic Australia and Cordell, this is said to be by reason of the matters pleaded in paragraphs 2 to 4, 6 to 7, and 43A. In the case of CoreLogic, this is said to be by reason of the matters pleaded in paragraphs 8 to 10, and 44 to 48.

66    The CoreLogic parties submit that the pleading of involvement by CoreLogic Australia, Cordell, and CoreLogic is deficient because BCI has failed to plead that CoreLogic Australia, Cordell, and CoreLogic knew the representations were made.

67    Dealing first with the position of CoreLogic Australia and Cordell, I accept this submission insofar as it concerns the Third Party Representations. I do not accept this submission insofar as it concerns the Legitimate Subscriber Representations which, ultimately, are based on the same activities pleaded in paragraphs 24 to 43 concerning RP Data accessing LeadManager and copying information. Paragraph 43A pleads that CoreLogic Australia and Cordell had knowledge of, approved, and assisted RP Data in those activities. The position in relation to the Forum Group Subscription Representations, the SkillTech Subscription Representations, and the Gingold Subscription Representations is less clear. Those representations are identified by reference to particular conversations or, in the case of the Gingold Subscription Representations, conversations and emails. However, so far as I can see, the draft pleading does not allege that CoreLogic Australia and Cordell had knowledge of those conversations or emails (as opposed to the particular activities pleaded in paragraphs 24 to 43).

68    The same applies to CoreLogic’s position. I accept the submission that the draft statement of claim does not plead that CoreLogic knew of the making of the Third Party Representations. As to the Legitimate Subscriber Representations, paragraphs 44 to 48 plead that CoreLogic knew that RP Data was accessing and copying information from LeadManager. However, so far as I can see, these paragraphs do not plead knowledge of the conversations or emails constituting the Forum Group Subscription Representations, the SkillTech Subscription Representations, and the Gingold Subscription Representations.

69    The problem, as I see it, with paragraph 126 is that it deals with the question of “involvement” in RP Data’s alleged contravening conduct in a very truncated way that does not make clear either the existence of the alleged knowledge, or the acts constituting the alleged involvement, of each of CoreLogic Australia, Cordell, and CoreLogic in RP Data’s conduct (it being appreciated that mere knowledge of contravening conduct is necessary, but not sufficient, to sheet home liability). As to the last-mentioned matter, the CoreLogic parties correctly point out that, even though paragraph 126 refers generally to s 2 of the Australian Consumer Law, it does not specify which of the acts in paragraphs (a) to (d) of the definition of “involved” BCI relies on for the allegation as it concerns each of those respondents. This may be important because, as the Full Court accepted in EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134; 360 ALR 261 (when dealing with the corresponding provision in the Fair Work Act 2009 (Cth)), there may be a “different emphasis” with respect to involvement depending on whether the involvement is aiding, abetting, counselling or procuring a contravention, or whether the involvement is being knowingly concerned in or party to a contravention: see Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176] – [179].

70    I accept that the core allegations in paragraph 126 must be pleaded with greater specificity, with greater precision, and by reference to material allegations of fact.

71    I would add that BCI uses the same pleading device in paragraphs 105, 112, and 119 of the draft statement of claim when it alleges that RP Data was “involved” in the alleged contraventions by Forum Group, SkillTech, and Gingold. Although, in these paragraphs, BCI pleads particular conduct, including inducement, the precise involvement of RP Data, in terms of the definition of “involved”, is not specified. This should be made clear.

72    The CoreLogic parties point to what they perceive to be a further problem with the Forum Group Subscription Representations. Paragraph 100 specifically pleads that Forum Group made those representations. It is the making of these representations that is alleged to be misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law. However, paragraph 105(a) pleads that RP Data engaged in misleading or deceptive conduct.

73    The CoreLogic parties contend that there is an inconsistency between the allegation in paragraph 100 and the allegation pleaded in paragraph 105(a). I am not sure that that is necessarily so. Paragraphs 105(c) to (g) plead particular conduct that might, in and of itself, constitute (if proved) conduct on the part of RP Data that is misleading or deceptive. Alternatively, that conduct might constitute “involvement” by RP Data in Forum Group’s conduct. The same can be said of paragraphs 112 and 119 in relation to the SkillTech Subscription Representations and the Gingold Subscription Representations.

74    Another complaint concerns the pleading of the SkillTech Subscription Representations and the Gingold Subscription Representations. The CoreLogic parties submit that certain material allegations of fact are not pleaded as such but are provided, impermissibly, as particulars. The CoreLogic parties point, specifically, to the allegations that Tanya George was an employee of or “acted under the direction or control of” RP Data, and that SkillTech or RP Data authorised or requested Ms George to make the SkillTech Subscription Representations, and that Gingold or RP Data authorised or requested Ms George to make the Gingold Subscription Representations.

75    I accept that these matters should be pleaded as material allegations of fact, not simply provided as particulars of a broader allegation that either SkillTech or RP Data, or Gingold or RP Data, made the relevant representations. If, as I apprehend, BCI seeks to rely upon matters of inference, the facts relied on for any inference must be pleaded.

76    The CoreLogic parties point to a particular difficulty with the pleading of reliance (paragraph 123) in respect of the Legitimate Subscriber Representations.

77    As I have noted, the Legitimate Subscriber Representations arise from RP Data’s alleged conduct. The conduct is constituted by RP Data (a) procuring Forum Group, SkillTech, and Gingold to obtain User Details; (b) obtaining those details from Forum Group, SkillTech, and Gingold; and (c) using those details to access LeadManager and copy information.

78    The allegations of reliance in paragraph 123 include the allegation that BCI would not have provided the User Details to Forum Group, SkillTech, and Gingold if BCI had known that Forum Group, SkillTech, and Gingold had provided the User Details to RP Data or that RP Data had used those details. Temporally, the counterfactual acts (would not have provided the User Details) cannot be conditioned on knowledge that the acts of providing and using the User Details had already occurred.

79    Logically, this must be correct. But I think the problem is really one of grammar, which can be corrected readily.

The pleading with respect to CoreLogic

80    The CoreLogic parties advance a number of criticisms of paragraphs 8, 9, and 10 of the draft statement of claim, largely on the basis that these paragraphs lack appropriate precision. I note, in particular, the allegations in paragraph 10(c) (that CoreLogic “approved, authorised or sanctioned the Robotics Programs used by CoreLogic Australia, RP Data and Cordell); in paragraph 10(d) (CoreLogic “approved the expenditure incurred by CoreLogic Australia, RP Data and Cordell in relation to the Robotics Programs”); and in paragraph 10(e) (CoreLogic “financially benefited from the increase in value of its ownership of CoreLogic Australia, RP Data and Cordell as a result of their use of the Robotics Programs”).

81    I accept that the pleading of paragraphs 10(c), (d), and (e) is deficient. These are, in substance, broad conclusions that are not supported by material allegations of fact. A further matter is whether the reference to CoreLogic Australia and Cordell in paragraphs 10(c) and (d) is apposite given that it is now alleged that it was RP Data who licensed the relevant software.

82    The CoreLogic parties submit that paragraph 44 of the draft statement of claim (concerning the knowledge of CoreLogic’s employees) is irrelevant. I am not satisfied of that fact.

83    The CoreLogic parties submit that paragraphs 47 and 48 (concerning CoreLogic’s knowledge of certain matters) are “problematic” because knowledge is pleaded as “a bald material fact”, and the particulars of each paragraph are inadequate. I do not accept that submission. I have not been taken to the documents in question, but the pleading is explicit that CoreLogic’s knowledge is recorded in the particularised documents. Whether that is the case is another matter, which will be determined at trial.

84    The CoreLogic parties draw attention to particular (ii) in paragraph 48 which also states that CoreLogic’s knowledge (in respect of the matters pleaded in that paragraph) is to be imputed. The CoreLogic parties submit that this is “a vague assertion” and that BCI is required to plead and particularise the allegations of fact from which knowledge is to be imputed, including the identity of the directors and executives in question.

85    I do not accept that submission. Particular (ii) makes clear that BCI relies on the knowledge of executives who were also directors of CoreLogic Australia, RP Data, and Cordell. Paragraph 45 of the draft statement of claim identifies the executives of CoreLogic who were the directors of CoreLogic Australia, RP Data, and Cordell at relevant times and who knew that RP Data was accessing and copying information from LeadManager using Robotics Programs and subscriptions obtained from Forum Group, SkillTech, and Gingold without BCI’s knowledge or consent. Paragraph 48 cannot be read in isolation from paragraph 45. Particular (ii) is confined accordingly.

86    The CoreLogic parties submit that BCI’s loss pleaded in paragraphs 127 and 128 of the draft statement of claim does not flow causally from any alleged involvement of CoreLogic. It is not possible to address that question sensibly without a proper pleading of CoreLogic’s alleged involvement: see the remarks made with respect to paragraph 126 of the draft at [52] – [56] above.

The pleading of loss

87    The CoreLogic parties submit that BCI’s pleading of loss is generally deficient. They point to BCI’s allegation that RP Data’s conduct in accessing and copying data from LeadManager led to improvements in Cordell Connect (which competes with LeadManager) and to the creation of Comparative Documents which were to be presented to BCI’s actual or prospective customers, resulting in losses to BCI of various kinds. One identified loss is that BCI’s actual or prospective customers subscribed to Cordell Connect rather than LeadManager.

88    The CoreLogic parties submit that, in respect of this alleged loss:

Not a single such customer is pleaded (nor even general details which might reveal the number of characteristics of such customers – there could be as little as one or many thousands or hundreds of thousands – the pleading is silent).

89    With respect to BCI’s particulars, which say that this matter will be the subject of evidence, including expert evidence, the CoreLogic parties submit:

This is obviously insufficient particularly when the question of lost actual customers is entirely within BCI’s knowledge. One can test it in this way: how could the CoreLogic Parties possibly respond to such an allegation? How could they lead evidence or brief their own experts? Indeed how could BCI? An expert cannot give evidence of those material facts. The matter will need to be proved by reference to the customers themselves.

90    The CoreLogic parties also point to BCI’s allegations that the impugned conduct caused loss to BCI’s subscription revenue and damage to the value of its business. They submit that these allegations are similarly deficient as a matter of pleading because they are bare allegations, and form part of a series of rolled-up allegations. They also point to what they contend is possible “double counting” in BCI claiming both loss of subscription revenue and damage to the value of its business.

91    The CoreLogic parties submit, further, that BCI’s pleading of loss (in various places in the draft statement of claim) does not make “logical sense”. For example, how can it be that “prospective” customers of BCI “cease[d] subscribing to LeadManager”?

92    I accept that there are deficiencies in BCI’s pleading of loss or damage.

93    BCI’s pleading in this regard follows a common pattern in respect of its contract (paragraph 55(g)), copyright (paragraph 82(b)), breach of confidence (paragraph 99(h)), and Australian Consumer Law (paragraphs 127(e) and 128) claims. These parts of the pleading contain rolled-up allegations concerning the response of BCI’s and RP Data’s actual or prospective customers to two separate events—the improvements in Cordell Connect and the Comparative Documents. These allegations need to be disaggregated, commencing with the response to, firstly, the improvements to Cordell Connect and, secondly, the Comparative Documents. The allegations also need to be disaggregated in respect of BCI’s actual customers, BCI’s potential customers, RP Data’s actual customers, and RP Data’s potential customers.

94    BCI has supplemented the drafting of paragraphs 55, 82, 99, 127, and 128 of the draft statement of claim by a separate document titled “Applicant’s Further Particulars of Loss of (sic) Damage to Statement of Claim” in an endeavour to clarify the pleading. However, I do not think that this object has been achieved. It is not clear how paragraphs 55, 82, 99, 127, and 128 of the draft statement of claim (and the existing particulars of those paragraphs) are to be read with the further particulars that have been provided and, in any event, the further particulars do not rectify the rolled-up nature of the allegations. Moreover, the further particulars are very broad indeed and do not sufficiently perform the function of particulars. In other words, the further particulars are not “particular enough”.

95    If BCI properly pleads its alleged loss then it is likely that the allegations that do not make “logical sense” will be exposed and rectified.

96    In undertaking that task, BCI should also plead the material facts which support each chain of causation relied on. This has not been done, and must be done. At the present time, all that BCI has pleaded is that, without more, “the improvements to Cordell Connect” and “the Comparative Documents” caused the various permutations of actual and prospective customers to do certain things. Causation is merely asserted. How or why each of the various permutations of actual or prospective customers were caused to do those things, by reason of the conduct of each of the CoreLogic parties, is not apparent on the face of the draft pleading.

97    BCI should also provide particulars of the identities of the various actual customers of BCI, the actual customers of RP Data, the prospective customers of BCI, and the prospective customers of RP Data, known to it, who acted in the ways alleged.

The pleading of profits

98    As well as alleging loss, paragraphs 82(b)(vi) and 99(h)(vi) of the draft statement of claim allege that the improvements to Cordell Connect and the Comparative Documents increased the profits of each of the CoreLogic parties. In paragraph 131, BCI seeks an account of profits in respect of copyright infringement (against CoreLogic Australia, RP Data, Cordell, and CoreLogic) and in respect of breach of confidence (against CoreLogic Australia, RP Data, and Cordell).

99    The claims for relief in the draft amended originating application suggest that an account of profits is sought against each of the CoreLogic parties. As the CoreLogic parties correctly point out, BCI has not pleaded how each respondent’s profits were increased by the improvements to Cordell Connect or by the Comparative Documents.

100    To take one example (by reference to paragraph 82(b)(vi)), how is it that actual customers of BCI, or prospective customers of BCI, or actual customers of RP Data, or prospective customers of RP Data, who ceased subscribing to LeadManager (paragraph 82(b)(i)(B)), or who did not subscribe to LeadManager (paragraph 82(b)(i)(C)), for the particular reasons given in paragraph 82(b) (i.e., the infringements of copyright that resulted in the improvements to Cordell Connect or the infringements in copyright that resulted in the Comparative Documents), result in an increase in profits of each of the CoreLogic parties? It is not apparent on the face of the draft pleading how this could be so in respect of any of the CoreLogic parties.

101     Once again, causation is merely asserted. But, as with the pleading of loss discussed above, paragraphs 82(b)(vi) and 99(h)(vi) require the pleading of facts that support a chain of causation.

The inclusive nature of the pleading

102    In BCI v CoreLogic at [28], I referred (with disapproval) to the use in pleadings of expressions such as “including”, which tend to promote imprecision, uncertainty, and confusion. Unfortunately, the draft statement of claim continues to deploy this device, including use of the expression “such as”. These expressions should be removed: see, e.g., paragraphs 10(f)(ii), 42(f), 42A(i), 42B(g), 46, 80(d), 81(d)(i), 80(d)(ii), 106(c), 113(c), 120(c), 123(c) and 134(vi). Alternatively, BCI must plead its allegations comprehensively, not simply by using exemplifications.

Conclusion

103    The draft statement of claim contains a number of pleading deficiencies. These deficiencies are capable of rectification. I will allow BCI the opportunity to address these deficiencies by bringing in a further draft of the statement of claim. BCI is to provide any further draft to the CoreLogic parties by 31 July 2023. By 21 August 2023, the CoreLogic parties are to inform BCI and the Court (through my Associate) whether there is any objection to the (then) draft statement of claim being filed.

Associate:

Dated:    23 June 2023

SCHEDULE OF PARTIES